The case concerned the request made by A, Ukrainian national and her son, beneficiaries of temporary protection since 23 March 2022, to change the allocation of their current canton C to canton D in order to move with E, the partner of applicant A. By letter of 27 October 2023, the SEM informed the applicants that, based on a preliminary examination of their application, it assumed that there was no right to a change of canton. The cantonal migration authorities confirmed the negative decision.
The applicants appealed against the decision and argued, based on the right to family unity and Article 8(1) of the ECHR. The Federal Administrative Court noted that the allocation to canton is based Article 21 of the Asylum Ordinance 1 of 11 August 1999 and the SEM takes into account family members already living in Switzerland, the nationality of those affected and cases requiring particularly intensive care (Article 22, paragraph 1 of the Asylum Ordinance 1). The decision on allocation can only be challenged on the grounds that it violates the principle of family unity, and a change of canton is ordered with the consent of both cantons, if there is a right to family unity or if there is a serious risk to persons (Art. 22 para. 2 of the Asylum Ordinance 1 of 11 August 1999.
The applicant A claimed to have met her partner in a language course in June 2023 and to have been in a relationship with him since July 2023. She explained that they each have a child from a previous marriage and support each other with childcare, for example on weekends and during holidays they live together as a family in D’s apartment, they are engaged, have already exchanged engagement rings, and they would like to have a child together, thus they would like to live together in D’s canton. The applicant also mentioned that she is seeking a job in D. area and that her partner already spends financial resources to support the whole family.
The SEM justified the negative decision on the fact that the relationship does not meet the requirements of Article 8 (1) of the ECHR because when examining requests to change cantons, there is a requirement that the relationship is of at least one year and since the applicant and her partner have only been in a relationship for six months and are not married under civil law, there is no entitlement to a change of canton.
The Federal Administrative Court stated that the term "family unit" according to Article 27 (3) of the Asylum Act is used uniformly in the Asylum Act and corresponds to the scope of protection of Article 8 of the ECHR. The concept primarily includes the nuclear family, i.e. spouses, registered partners and people living together in a permanent marriage-like relationship, as well as their minor children (cf. Article 1a letter e of the Asylum Ordinance 1).
The court noted that the fact argued by the applicant A regarding their relationship, namely that they met in June 2023, have been a couple since July 2023, are engaged, have a common desire to have children, support each other in childcare, spend weekends and holidays together and were considered credible by the SEM and the court also assessed the statements as plausible, coherent and chronologically logical. The FAC further analysed whether their relationship meets the case law requirements for a non-marital or pre-marital family relationship protected by Art. 8 (1) ECHR. In view of the high level of mutual commitment, credible focus on the future and support on childcare, the FAC considered that despite the short duration, however the relationship meets the requirements of the case law on Article 8(1) of the ECHR and can be classified as a premarital family relationship protected by fundamental rights.
Thus, the FAC ruled that the applicant rightly relied on the right to family unit to request the change of canton and that SEM wrongly refused the request.